Ward v Police Service of Northern Ireland

The House of Lords considered the powers under Schedule 8 to the Terrorism Act 2000 permitting a judicial authority to exclude a detained person and his legal representative from part of a hearing for the issue or extension of a warrant of further detention. The court held that para 33(3) confers a broad, unqualified discretion to exclude the detained person and his representative so that the judicial authority can examine, in their absence, sensitive material such as the topics the police propose to put at interview. That power must, however, be read subject to para 34 which provides a specific procedure for withholding specified information where the statutory grounds are made out.

The court interpreted para 34(2)(d) purposively and concluded it does not, in general, permit withholding information from the detained person on the ground that disclosure would make his own prosecution or conviction more difficult; the words refer to other persons. Where para 34 applies an order under that paragraph should ordinarily be sought before the hearing. If para 34 does not apply, exclusion under para 33(3) may lawfully be used to permit the judge to investigate sensitive topics in the detainee's absence and the judge may appropriately refrain from disclosing what occurred during the exclusion if disclosure would undermine the process.

This was an appeal against the decision of Hart J dismissing judicial review of a county court judge's extension of a warrant of further detention under Schedule 8 to the Terrorism Act 2000. The appellant, Christopher Owen Ward, had been arrested under section 41 on suspicion of involvement in a robbery and detained. The police applied for extensions of detention under Schedule 8, and at the hearing before Judge Gibson the judge excluded Mr Ward and his solicitor briefly so that he could be informed about five outstanding topics the police wished to put to Mr Ward at interview. No application under para 34 to withhold specified information was made. Mr Ward applied for judicial review on the ground that exclusion and nondisclosure were outside the powers conferred by Schedule 8; Hart J refused relief and certified points of law for the House of Lords.

The issues framed were: (i) whether para 33(3) confers a freestanding power to exclude the detained person and representative or must be read subject to para 34; (ii) whether a judicial authority may withhold information provided during a period of exclusion absent an application under para 34; and (iii) whether information may be withheld other than under para 34. The House of Lords analysed the statutory scheme, emphasising the three permissible grounds for extension in para 32 and the protective purposes of Part III of Schedule 8. It concluded para 33(3) does give the judicial authority an unqualified discretion to exclude where necessary to enable the judge to scrutinise sensitive material, but this power must be read subject to para 34: when the specific withholding procedure in para 34 is available it should be used and ordinarily applied for before the hearing. The court interpreted para 34(2)(d) as referring to persons other than the detained person. The House of Lords therefore dismissed the appeal, upholding Judge Gibson's exercise of his discretion to exclude Mr Ward and his solicitor in the circumstances because the exclusion was for Mr Ward's benefit and was not used to his detriment.

• Nature of claim: judicial review of a decision to exclude a detained person and his solicitor from part of a hearing and to withhold information in the hearing for extension of detention under Schedule 8 to the Terrorism Act 2000.
• Issues: construction and interaction of paras 33 and 34 of Schedule 8; lawfulness of exclusion and withholding without application under para 34; scope of para 34(2)(d).
• Court's reasoning: statutory interpretation of Schedule 8 in its context, emphasis on the detainee's safeguards, recognition of need for sensitive in camera examination by the judicial authority, and requirement that para 34 procedure be used where applicable.

Appeal dismissed. The House of Lords held that para 33(3) of Schedule 8 confers an unqualified discretion on a judicial authority to exclude the detained person and his representative so that the judge may examine sensitive matters (such as proposed interview topics) in their absence, but that para 33(3) must be read subject to para 34: where the specific grounds and procedure for withholding specified information in para 34 apply, an order under para 34 should ordinarily be sought and used. The court further held that para 34(2)(d) is properly read as referring to persons other than the detained person and does not generally authorise withholding from the detained person on the ground that disclosure would make his prosecution or conviction more difficult.

On appeal from the High Court of Justice in Northern Ireland (Hart J) which dismissed an application for judicial review and certified questions of law; appeal to House of Lords from [2005] NIQB 85.